State of New Jersey v. Jerome Kennedy

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,v.JEROME KENNEDY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-01-00099.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 22, 2011

Before Judges Parrillo, Skillman and Roe.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The primary issue presented by this appeal is whether the offense of tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1), is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1).

Defendant was indicted for possession of heroin, in violation of N.J.S.A. 2C:35-10(a)(1); conspiracy to possess heroin, in violation of N.J.S.A. 2C:5-2; hindering his own apprehension, in violation of N.J.S.A. 2C:29-3(b)(1); and tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1). Defendant entered into a plea bargain under which he agreed to plead guilty to the tampering with physical evidence charge, and the State agreed to dismiss the other charges. The parties also agreed to submit the issue of whether tampering with physical evidence is "an offense involving dishonesty," which required defendant to forfeit his employment with the Morristown Department of Public Works, for determination by the trial court. In providing a factual basis for his plea, defendant admitted that when he was approached by the police, he swallowed heroin he had just purchased.

The trial court sentenced defendant to three years of probation. The court also determined that tampering with physical evidence is not "an offense involving dishonesty" and therefore defendant was not required to forfeit his public employment.

The State appeals from the part of defendant's sentence that denied the State's application for the forfeiture of defendant's public employment. Defendant moved to dismiss the State's appeal on the ground that the State has no right to appeal from a sentence for a fourth-degree offense. We reserved decision on the motion pending consideration of the merits of the appeal.

We now conclude that the trial court's decision denying the State's application for the forfeiture of defendant's public employment is appealable. We also conclude that tampering with physical evidence is "an offense involving dishonesty" that requires forfeiture of public employment under N.J.S.A. 2C:51-2(a)(1).

I.

The Code of Criminal Justice confers a right upon the State to appeal a sentence only under limited circumstances, which do not include a probationary sentence for a fourth-degree offense. See N.J.S.A. 2C:44-1(f)(2); State v. Veney, 327 N.J. Super. 458, 460-61 (App. Div. 2000). Therefore, the State could not have appealed from the part of defendant's sentence that imposed a probationary rather than a custodial sentence.

However, a forfeiture of public employment is a "collateral" rather than a "penal" consequence of a criminal conviction. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 575 (2002). Therefore, the general limitations upon the State's right to appeal from criminal convictions do not apply to this mandatory collateral consequence of a qualifying conviction. State v. Ercolano, 335 N.J. Super. 236, 243 (App. Div. 2000), certif. denied, 167 N.J. 635 (2001). In fact, if a trial court fails to impose this collateral consequence at the time of sentencing, it may subsequently order forfeiture of the defendant's public employment upon application of the prosecutor or one of the other public officials listed in N.J.S.A. 2C:51-2(g). See id. at 243-44. And although the Code does not contain express authorization for ...

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